Opinion
No. 107,415.
2013-07-5
STATE of Kansas, Appellee, v. Michael Patrick BRADISH, Appellant.
Appeal from Johnson District Court; Thomas H. Bornholdt, Judge. Michael P. Bradish, appellant pro se. Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Johnson District Court; Thomas H. Bornholdt, Judge.
Michael P. Bradish, appellant pro se. Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., PIERRON, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Defendant Michael Patrick Bradish appeals his conviction and sentence for felony driving under the influence in violation of K.S.A.2009 Supp. 8–1567 and convictions for related offenses following a bench trial in Johnson County District Court. Although represented by counsel in the district court, Bradish has handled his own appeal. He raises a series of issues that we take up. But none of them warrants relief, so we affirm both the convictions and the related sentences.
On March 22, 2010, Overland Park Police Officer Tina Morse was dispatched to the Blue Valley Montessori School in that city in response to a call about an out-of-place car and its occupant. She arrived at the school parking lot just after 3:15 p.m. and approached Bradish's car. Morse noticed the engine was not running but the radio was on. Bradish was the only person in the car. Morse came to the driver's side door to speak with Bradish, who was in the driver's seat. She noticed a nearly empty bottle of beer in Bradish's lap. Bradish smelled of beer, and he had tobacco spittle around his mouth and loose chewing tobacco on his heavily soiled shirt.
Morse said Bradish's speech was slurred and his eyes bloodshot. According to Morse, Bradish had difficulty retrieving his driver's license from his wallet and didn't seem to understand some of the questions she asked him. He also was argumentative or sarcastic in some of his exchanges with her. Morse saw two empty beer bottles in the passenger's seat and a Bud Light box on the passenger's side floor. Bradish told Morse he wasn't doing anything wrong and was just sitting in his car listening to the Royals' game on the radio.
Morse was concerned that Bradish might be combative—the dispatcher reported that the complainant from the school said Bradish was loud—and could use the bottles as weapons. She had Bradish step out of the car, and she then handcuffed him for safety purposes. Morse asked Bradish how much he had to drink. He first said he had had nothing to drink and was not intending to go anywhere. A little while later, Bradish said he had one beer while listening to the baseball game. Evidence introduced at trial showed the Royals' game was broadcast between 3 and 6 p.m. that day.
After handcuffing Bradish, Morse collected the beer bottles in the car. She found 13 empties that were still moist inside, 6 unopened bottles, and the near empty bottle Bradish had in his lap when she first approached the car.
The trial evidence showed that an employee of the preschool had left the building at 1:47 p.m. and did not see Bradish's car in the parking lot. At 2:44 p.m., another employee left the building with her child and saw Bradish sitting in the car talking to himself. The employee used her cell phone to report Bradish to a coworker still in the building. The coworker went out and confirmed Bradish's presence in the parking lot. A few minutes later the coworker directed a third employee to call the police. That call was placed to the police dispatcher at 3:04 p.m.
Morse arrested Bradish and drove him to a police station in Overland Park before having him perform any field sobriety tests. Morse believed she had sufficient evidence to make an arrest and concluded it would better to conduct the tests away from the school so the children would not see the situation as they left for the day. Morse described Bradish as showing impairment on the alphabet test and as unable to stay in position on the walk-and-turn test. Bradish failed the one-leg-stand test and said, “I have a bad back, I can't do it.” Bradish refused to take a breath test to measure his blood-alcohol level. After Morse read Bradish his Miranda rights, he admitted driving from Kansas City, Kansas.
Following a bench trial, the district court found Bradish guilty of DUI, in violation of K.S.A.2009 Supp. 8–1567; transporting an open container, in violation of K.S.A.2009 Supp. 8–1599; and refusing a preliminary breath test, in violation of K.S.A.2009 Supp. 8–1012. The bench trial record included transcripts of testimony from earlier hearings admitted by agreement, documentary evidence, and some live testimony. Bradish, however, did not testify in his own defense. Bradish had a DUI conviction in 1993, another in 1998, two in 2000, and one in 2005. The district court imposed a controlling sentence on Bradish of 300 days in the county jail and fined him $2,500. Bradish has timely appealed.
For his first issue on appeal, Bradish contends he was functionally arrested when Morse handcuffed him and at that point the officer lacked probable cause for an arrest. Bradish argues Morse's actions violated his right against unreasonable search and seizure protected by the Fourth Amendment to the United States Constitution, so any statements he made or other evidence obtained after that should be suppressed. To address this issue, we assume without deciding that Bradish was detained in a way amounting to an arrest, although that is not necessarily true. See United States v. Bullock, 632 F.3d 1004, 1015–1016 (7th Cir.2011); State v. Nugent, 15 Kan.App.2d 554, Syl. ¶ 3, 811 P.2d 890 (1991). An arrest conforms to the Fourth Amendment if it is based on probable cause. Probable cause to arrest depends upon the officer having a reasonable belief that a specific crime has been committed and the defendant committed the crime. Sloop v. Kansas Dept. of Revenue, 296 Kan. 13, 20, 290 P.3d 555 (2012). The belief may be drawn from the totality of the circumstances and reasonable inferences drawn from those circumstances. 296 Kan. at 20.
The offense of DUI requires a defendant to have operated a motor vehicle while under the influence of alcohol to the point he or she cannot do so safely or with a blood-alcohol level of .08 or more. K .S.A.2009 Supp. 8–1567. At the time Morse handcuffed Bradish, she had sufficient evidence to establish probable cause. Bradish smelled of alcohol; was slow in his responses to her requests, such as getting his driver's license; had bloodshot eyes; and was in possession of a mostly consumed bottle of beer with two empties next to him. That more than sufficiently established Bradish could be quite intoxicated. He was the only person in the car, had the key in the ignition, and was listening to the radio. Again, that indicated he had driven to the preschool parking lot. There was no evidence another person had recently been in the car, such as a purse left behind or a jacket that plainly wouldn't fit Bradish. And Bradish certainly did not indicate he was merely keeping the driver's seat warm for someone else.
Transporting an open container requires having alcoholic liquor or a cereal malt beverage in an unsealed container accessible to the driver. K.S.A.2009 Supp. 8–1599. The open beer bottles coupled with Bradish's presence in the car furnished sufficient probable cause for Morse to make an arrest under K.S.A.2009 Supp. 8–1599.
Those circumstances and the inferences drawn from them provided probable cause for Morse to arrest Bradish for either DUI or having an open container when she handcuffed him. We, therefore, reject the first point on appeal.
For his second issue, Bradish contends the evidence was insufficient to support his conviction for DUI. In reviewing a sufficiency challenge, we construe the evidence in a light most favorable to the party prevailing below, here the State, and in support of the judgment or verdict. An appellate court will neither reweigh the evidence generally nor make credibility determinations specifically. See State v. Pham, 281 Kan. 1227, 1252, 136 P.3d 919 (2006); State v. Trautloff, 289 Kan. 793, 800, 217 P.3d 15 (2009). Even the most serious of crimes may be proven by circumstantial evidence. See State v. Scott, 271 Kan. 103, 107, 21 P.3d 516 (2001). The issue for review is simply whether a rational fact-finder could have determined Bradish guilty beyond a reasonable doubt. See State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011).
Here, there was sufficient evidence to convict. Without belaboring the record, the evidence supports the conclusion Bradish was quite intoxicated when Morse arrived shortly after 3:15 p.m. Based on her training and experience and her observations of Bradish, Morse concluded he could not have operated a motor vehicle safely at that time. His inability to easily produce his driver's license, his slow responses to questions, and his performance on the field sobriety tests all demonstrated a substantial degradation of physical coordination and mental acuity consistent with intoxication and an inability to drive safely. The record similarly supports a finding that Bradish drove the car—he admitted as much to Morse. The issue boils down to whether he drove while intoxicated to the point of impairment. The evidence shows that he was not in the parking lot about 1:47 p.m. and arrived there sometime before 2:45 p .m. Unless he chugged all 13 beers between his arrival and Morse's arrival, Bradish was drinking (and drinking heavily) while he was driving. The supposition he began drinking only when he got to the parking lot seems unlikely on its face. In addition, Bradish initially told Morse he had had nothing to drink and then admitted he had one beer while listening to the Royals game. His initial declination was plainly false, and his second explanation only marginally less so. Bradish's dissembling about how much he drank permits a reasonable inference that he was less than candid because he had driven while drunk and knew it. No other explanation even remotely supported in the evidence satisfactorily defuses those circumstances. Bradish never suggested to Morse that he had three friends with him who drank all the beer and left. School employees saw no one other than Bradish in the car. Some abstract and unarticulated alternative possibility—a stranger dropped off the box and told Bradish to recycle the empties and to keep the full ones for his trouble—doesn't create reasonable doubt.
In short, the evidence produced at the bench trial was sufficient to support the district court's finding of guilt.
For his next point, Bradish contends he should have been punished under the DUI statute in effect on September 13, 2011, when he was sentenced. Under Kansas law, however, a defendant is sentenced based on the statutes in effect at the time of the crime, here March 22, 2010. Between the offense date and sentencing hearing, the Kansas Legislature modified K.S.A.2009 Supp. 8–1567(o)(3) to prohibit the use of a defendant's DUI convictions before July 1, 2001, to enhance his or her sentence. See K.S.A.2011 Supp. 8–1567(j)(3). Bradish argues that change in the law should be applied to him, so he would be sentenced for a second DUI conviction rather than a sixth.
This court has rejected that argument, holding that the statute in effect at the time of the offense governs DUI sentencing. State v. Reese, 48 Kan.App.2d 87, 88–89, 283 P.3d 233 (2012), petition for rev. filed September 4, 2012. For Bradish, that means all of his earlier DUI convictions must be considered in setting the punishment in this case. The district court applied the correct version of the statute and properly sentenced Bradish as a 6–time offender.
Bradish raises two other sentencing issues. First, he says the district court failed to consider allowing him to perform community service work as an alternative to paying the mandatory fine, as required in State v. Copes, 290 Kan. 209, Syl. ¶ 8, 224 P.3d 571 (2010). Second, he says the district court should have considered placing him on house arrest after he served the statutorily required 72 hours in jail. See K.S.A.2009 Supp. 8–1567(f)(1) (applicable to third offense). Even assuming house arrest were a legally permissible option, both of Bradish's arguments fail for an elementary reason. He has failed to include a transcript of the sentencing hearing in the record on appeal. We, therefore, cannot determine what was presented to the district court at the time of sentencing. And we cannot tell if the district court may have made a mistake of some sort in sentencing Bradish. The party raising a point in this court has “the responsibility for providing a record on appeal sufficient to support [his or her] argument.” Holmes v. State, 292 Kan. 271, Syl. ¶ 5, 252 P.3d 573 (2011). As to these arguments, Bradish has failed to do so. We cannot review his complaints about the sentencing without a transcript of that hearing, let alone reverse the district court.
Finally, Bradish argues that the assistant district attorney who prosecuted him resigned from the Johnson County District Attorney's office because she had been sanctioned by the Kansas Disciplinary Administrator for misleading the court in another DUI case. Bradish contends he should be afforded some unspecified remedy in this case—we suppose reversal of his convictions. There is nothing in the record in this case to establish what, if any, action the disciplinary administrator took against the prosecutor or why. And Bradish points to nothing the prosecutor supposedly misled the district court about in his case. Accordingly, we have no factual or legal grounds to grant Bradish relief on the mere supposition something might be amiss.
Affirmed.